Karnataka High Court
Smt. Shivamma vs The National Insurance Co.Ltd on 8 February, 2024
-1-
NC: 2024:KHC:5534
MFA No. 5337 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
M.F.A.NO. 5337 OF 2014 (MV)
BETWEEN:
1. SMT. SHIVAMMA
W/O R BANDRAVAPPA
AGED ABOUT 52 YEARS
2. SRI SIDDANNA
S/O R BANDRAVAPPA
AGED ABOUT 32 YEARS
3. SRI HANUMANTHA
S/O R BANDRAVAPPA
AGED ABOUT 30 YEARS
ALL ARE RESIDING AT
BANDRAVI VILLAGE
MOLAKALMURU TALUK
CHITRADURGA DISTRICT-577535
Digitally ...APPELLANTS
signed by
BHARATHI S (BY SRI V B SIDDARAMAIAH, ADVOCATE)
Location:
HIGH COURT AND:
OF
KARNATAKA
1. THE NATIONAL INSURANCE CO.LTD
BRANCH OFFICE
PARVATHI NAGAR MAIN ROAD
BELLARY-583101
REP. BY ITS BRANCH MANAGER
2. SRI NAJEER
S/O KHASIM SAB
AGE NOT KNOWN TO THE APPELLANTS
R/O RAMAPURA VILLAGE
MOLAKALMURU TALUK
-2-
NC: 2024:KHC:5534
MFA No. 5337 of 2014
CHITRADURGA DISTRICT-577535
3. SRI R BANDRAVAPPA
S/O RAGULU HANUMANTHAPPA
AGED ABOUT 62 YEARS
R/O BANDRA VILLAGE,
MOLAKALMURU TALUK
CHITRADURGA DISTRICT - 577 535.
...RESPONDENTS
(BY SRI B.PRAMOD, ADVOCATE FOR SRI A.N.KRISHNA SWAMY,
ADVOCATE FOR R1;
VIDE ORDER DATED 24.01.2017, APPEAL ABATED
AGAINST R2;
R3 SERVED AND UNREPRESENTED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 04.07.2014 PASSED IN MVC
NO.317/2010 ON THE FILE OF THE II ADDITIONAL SENIOR
CIVIL JUDGE AND ADDITIONAL MACT-V, CHITRADURGA,
DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The above appeal is filed by the claimant challenging
the judgment and award dated 04.07.2014 passed in MVC
No.317/2010 by the II Addl. Senior Civil Judge and additional
MACT-V, Chitradurga1 and seeking enhancement of the
compensation awarded.
2. For the sake of convenience, the parties herein are
referred as per their rank before the Tribunal.
Hereinafter referred to as the 'Tribunal'
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3. The relevant facts necessary for consideration of
the present appeal are that claiming compensation for the
death of one Gurupadappa2 in a road traffic accident dated
10.10.2007, his mother and brother filed a claim petition under
Section 163(A) of the Motor Vehicles Act3.
4. It is the case of the appellants-claimants4 that while
the deceased was walking on the road, a tractor bearing No.KA-
16/8538 came in a rash and negligent manner and hit the
deceased from behind and caused the accident in question, as a
result of which, the claimant sustained grievous injuries and
succumbed to the injuries. The driver, owner and insurer of
the tractor were arrayed as Respondents in the claim
proceedings. Respondent No.3 - insurer entered appearance
before the Tribunal and contested the said proceedings.
5. The claimant No.1 was examined as PW.1 and a
witness was examined as PW.2. Exhibits P1 to P8 were marked
in evidence. The representative of the insurer was examined as
RW1 and another witness as RW.2. Exs.R1 to R7 were marked
Hereinafter referred to as the 'deceased'.
Hereinafter referred to as the 'Act;.
Hereinafter referred to as the 'claimants'.
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in evidence. The Tribunal by its judgment and award dated
04.07.2014, dismissed the claim petition. Being aggrieved, the
present appeal is filed.
6. Learned counsel for the appellants-claimants
assailing the judgment and award and contends that the
Tribunal has erred in recording a finding that the deceased was
driving the tractor and dismissed the claim petition. It is
contended that the petition being under Section 163(A) of the
Act, the aspect of negligence ought not to have been gone into
by the Tribunal and even if the deceased was driving the
tractor, the claimants were entitled to compensation. Hence,
he seeks for allowing of the above appeal and granting of the
relief sought for. In support of his submissions, he relied the
judgment of the Hon'ble Supreme Court in the case of Shivaji
and another v. Divisional Manager, United India
Insurance Co. Ltd. And Others5.
7. Per contra, learned counsel for Respondent No.1 -
insurer justifies the judgment and award passed by the Tribunal
and seeks for dismissal of the above appeal.
AIR 2018 SC 3705
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8. The submissions made by both the learned counsels
have been considered and the material on record including the
records of the Tribunal have been perused. The question that
arises for consideration are 'Whether the finding recorded by
the Tribunal is just and proper?'
9. The claimants in the claim petition has averred that
the deceased was walking on the road when the offending
tractor driven by the Respondent No.1 and owned by
Respondent No.2 hit the deceased from behind causing the
accident in question. The Tribunal appreciating the oral and
documentary evidence on record has noticed that the witness
who was examined in the present case as PW.2 was also
examined as PW.2 in C.C. No.193/2008 i.e., criminal
proceedings, wherein he has deposed that himself and the
deceased filled water into a tanker attached to the tractor and
when they were proceeding in the said tractor, the accident
occurred. Hence, the Tribunal has recorded a finding that,
taking into consideration Exs.P2 and P3 and the other material
on record, the deceased was driving the tractor at the time of
the accident. Hence, the Tribunal has recorded that the
accident did not occur as averred in the claim petition.
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10. The Tribunal has further noticed that in the inquest
mahazar (Ex.R7) the Respondent No.2 - owner of the vehicle
has also stated before the police authorities that the deceased
and PW.2 had taken the tractor and when the same was being
driven by the deceased the accident occurred wherein the
deceased succumbed to the injuries. Hence, the Tribunal
having noticed that the version of the claimants is entirely
different from the evidence of the eye witness and also the
complainant, has dismissed the claim petition.
11. The contention of the learned counsel for the
claimants that the Tribunal ought not to have considered the
aspect of negligence while adjudicating a claim petition under
Section 163(A) of the Act and the reliance placed on the
judgment of the Hon'ble Supreme Court in the case of Shivaji5
will not aid the case of the claimants having regard to the fact
that the insurer can be fastened with the liability only
consequent to a tortious act that could be attributed to the 1st
Respondent - driver of the vehicle and the owner being held
liable for the same. In the present case, the plea of the
claimants as to manner of occurrence of the accident itself
having been contrary to the other material on record, the
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question of construing a case contrary to what is pleaded by
the claimant itself does not arise.
12. There is no quarrel with the proposition of law as
held by the Hon'ble Supreme Court in the case of Shivaji5.
However, the factual matrix in the present case being different
from the case in the case of Shivaji5, the said judgment would
not aid the case of the claimants.
13. The claimants has failed in demonstrating that the
finding recorded by the Tribunal is erroneous. The documents
on record would indicate that the deceased was driving the
vehicle which was contrary to the case put forth by the
claimants before the Tribunal. The finding of the Tribunal being
just and proper, no interference in the said finding is
warranted in the present appeal. Hence, question framed for
consideration is answered in the Negative.
14. In view of the aforementioned, the following
order is passed:
ORDER
i) The above appeal is dismissed.
NC: 2024:KHC:5534
ii) The judgment and award dated
04.07.2014 passed in MVC No. 317/2010 by
the II Addl. Senior Civil Judge and
additional MACT-V, Chitradurga is affirmed.
Sd/-
JUDGE
BS
